A Gentlemen's Agreement: Assessing the GNU General Public License and its Adaptation to Linux

Abstract

The open source community is conducting a robust debate on the intellectual property issues surrounding the GNU General Public License (GPL) a popular modified public domain software license, and Linux, its most successful project to date. The Linux community has evolved its open source development model to accommodate realities of copyright law and the need to secure both significant commercial participation and widespread industry adoption. The legal issues underlying this transformation have not undergone the same robust analysis. This paper sheds light on those issues and tests some of their limits.

The GPL fails to define fundamental terms adequately, including the inconsistent use of based on (derivative works), the lack of a choice of law provision, and the ambiguous treatment of patents. The GPL holds itself out as a viral license, purporting to foist itself on any software developer who has incorporated GPL code into a project. These and other factors combined with the Linux community's outdated views on copyright protection for kernel modules make it unlikely that a court could give full effect to the GPL or protect open source code from closed source intrusions. The GPL, however, does act as the most important beacon for Linux and the rest of the open source world. Its most significant contribution may differ greatly from the one envisioned by its creators: collaborative, decentralized development rather than free software. Contrary to some non-legal analyses, the gentlemen's agreement model employed by Linux to ensure that both closed source and open source software can coexist is a legally defensible, common sense adaptation of the GPL.

Keywords: copyright, software license, GPL, Linux, GNU, intellectual property

JEL Classification: O34, K12, K33, O31